Wednesday, 7 April 2010

Judges can be sued

Law of contempt review may be necessaryM RamalingamApr 7, 101:01pmI refer to the Malaysiakini report Matthias Chang admitted tohospital.

The law of contempt is entrenched in our justice system so that thecourse of justice is not deflected or interfered with.

However, it should be used as a last resort and should be mostjealously and carefully guarded and exercised lest it becomes totallyarbitrary and unlimited.

I feel sorry for Mathias Chang. The right to criticism is a part of abirthright of all subjects but that right cannot and must not bestretched to the indignity of the court.

Contempt of court is an offence of a criminal character. A judge hasthe inherent jurisdiction to severally reprimand the person or indeedjail him if it can be satisfactorily proved that he has brought thecourt into disrepute.

In this case, the judge has been judicious enough to grant the persona chance to apologise for bringing the course of justice intodisrepute. However the power of the judge is institutionallysafeguarded and it is indeed rare for a judge to be cited forcontempt.

There seems to be some uncertainty as to whether a judge actingcontrary to the law can also be liable for contempt in his own court.There is a special provision in India's Contempt of Court Act 1971,dealing with contempt by a Judge.

Section 16: Contempt by Judge, Magistrate or other person actingjudicially

(1) Subject to the provisions of any law for the time being in force,a judge, magistrate or any other person acting judicially shall alsobe liable for contempt of his own court or of any other court in thesame manner as any other individual is liable and the provisions ofthis Act shall, so far as may be, apply accordingly.

This is one area of law that should be further researched although inMalaysia, too, we have other provisions that recognise this, ie,Chapter XI of the Penal Code under the heading Offences Against PublicJustice, for example:

Section 219: 'Whoever being a public servant, corruptly or maliciouslymakes or pronounces in any stage of a judicial proceeding, any report,order, verdict, or decision which he knows to be contrary to law shallbe punished with a term of imprisonment for a term which may extend toseven years or with fine, or with both.'

Section 218 deals with a public servant framing an incorrect record orwriting with intent to save a person from punishment or property fromforfeiture. Section 204 deals with destruction of document to preventits production as evidence.

Section 19 states that the word 'judge' denotes not only every personwho is officially designated as a judge but also every person who isempowered by law to give, in any legal proceeding, civil or criminal ajudgment.

It is interesting to research as to whether judges in his Majesty'sCourt in Malaysia have ever been cited for contempt.

It is not uncommon for judges themselves to sometimes abuse or misusetheir powers. If they do so knowingly, they themselves would be guiltyof a misuse of power and thereby can be cited for contempt. Theprovisions stated herein above would give legitimacy for a judge,prosecutor or any public servant to be cited for contempt if a case ofsuch action is brought before the court.

As a matter of fact, Section 21 defines public servant to includeevery judge. A review of the law of contempt may be necessary so thatJustice could be tempered with mercy.

A case in point is that of Adorona Properties and Boonsum Boonyanit.The highest court of the land has confirmed the perverse judgment ofthe unjust judges. Can those judges be cited for contempt? Can therebe any hope of a recourse for those who have lost their land in thisway?